[2019] KESC 77 (KLR)

THE REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Maraga CJ & P; Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)

PETITION (APPLICATION) NO. 38 OF 2018

HAMDIA YAROI SHEK NURI.................................APPELLANT

VERSUS

FAITH TUMAINI KOMBE.............................1ST RESPONDENT

AMANI NATIONAL CONGRESS.................2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.....................3RD RESPONDENT

(Being an Application for leave to file an affidavit seeking to be excused from proceedings)

RULING

[1] The substantive matter before the Court is a Petition of appeal dated and filed on the even date of 26th October 2018. The appeal seeks to set aside the Court of Appeal (Ouko, P, Musinga & Murgor, JJA) judgment delivered in Election Petition Appeal No. 5 of 2018 as consolidated with Election Petition No. 1 of 2017, which judgment dismissed the Appellant’s appeal for lack of jurisdiction.

[2] Upon being served with the Petition of appeal, the 2nd Respondent (Applicant herein) filed a Notice of Motion Application dated 17th December 2018, subject of this Ruling. The application is stated to be brought under Rule 8 of the Supreme Court of Kenya Rules, 2012, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law.

[3]The application seeks for orders that: the 2nd Respondent be and is hereby granted leave to file an affidavit seeking to be excused from the proceedings before this Honorable Court, and that the 2nd Respondent be granted costs of this application.

[4] The application is premised on grounds in the body of the Notice of Motion and a Supporting Affidavit sworn by one, Barrack Okwaro Muluka, the 2nd Respondent’s Secretary General. The crux of the application is that the 1st Respondent colluded with the 2nd Respondent’s former officials to secure her nomination as a Member of County Assembly of Tana River County contrary to the Party’s Constitution. That while the Appellant successfully sued the 1st Respondent at the Magistrate Court the decision was quashed by the High Court on the basis of a legal technicality. Further, that the Party was not aware of the collusion until the Appellant wrote a letter to the Party.

[5] It is deposed that upon realizing the collusion, the Party instructed an advocate who went on record at the High Court and subsequently at the Court of Appeal, with the aim of bringing to the attention of the court(s), the true factual position. However, the Court of Appeal cited lack of jurisdiction and downed its tools. Consequently, the Applicant now wishes to withdraw from the matter as it deems its continued participation in this matter as amounting to perpetuating a fraud and sanitizing an illegality. Hence the current application for leave to file an affidavit to withdraw from the proceedings.

[6] In response to the application, the 1st Respondent filed a Replying Affidavit sworn by its advocate on record, one Sylvester Ngacho Mukele, on 27th February 2019 in which it seeks the dismissal of the application. It is averred that the dispute involves the election of a member to the County Assembly of Tana River on account of being a member of the 2nd Respondent which election is challenged by another member of the 2nd Respondent and therefore the 2nd Respondent cannot run away from its responsibilities to its members.

[7] On its part, the 3rd Respondent filed a Replying Affidavit sworn by one Salome Oyugi, its manager for Political Parties and Campaign Financing. She deposes that the 2nd Respondent does not address the principal question that was before the Court of Appeal: whether it had jurisdiction to determine the matter before it.That the Court of Appeal having held as it did, it could not delve into the merits of the case. Further that the issues being raised by the 2nd Respondent in its application should have been properly raised before the Political Parties Disputes Tribunal, which was not done. And that the 2nd Respondent has all along been a party to these proceedings since the lower Court upto the Court of Appeal and cannot now exist them. She urges that application to be dismissed for being frivolous and with no merit.

[8] The Supreme Court has considered the Notice of Motion Application and its supporting affidavit. We have also perused the 1st and 3rd Respondents Replying Affidavits. The sole issue for determination is whether the Applicant (2nd Respondent) should be granted leave to file an affidavit to withdraw from proceedings. However, before considering this meritorious issue, there are two aspects that we need to consider. Both are fundamental question of procedure.

[9] In making its application, the 2nd Respondent invoked Rule 8 of the Supreme Court of Kenya Rules, 2012, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. This Court has been emphatic that the Civil Procedure Act is not applicable when moving this Court. The issue was stated in Daniel Kimani Njihia v Francis Mwangi Kimani & Another, [2015] eKLR, and affirmed inCounty Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR. In the Njihia case, this Court stated:

“[13] We have found still another impropriety. The Notice of Motion has been brought under Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9, Laws of Kenya), and Rules 39, 42 and 43 of the Court of Appeal Rules, 2010. These are not the right provisions of law under which the applicant should move the Supreme Court, where a review of denial of certification is sought.

[14] This Court’s jurisdiction is exercisable only on the basis of express provisions of the Constitution and the law. The operational rules for this Court (Supreme Court Rules, 2012) are made pursuant to the Constitution, Article 163(8) of which provides:

“The Supreme Court shall make rules for the exercise of its jurisdiction”.

[15] Consequently, the only applicable sources of law when moving the Supreme Court are the Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The Appellate Jurisdiction Act is not applicable when moving this Court. Neither is the Civil Procedure Code.” (Emphasis provided).

[10] Consequently, we find and hold that the reference to the Civil Procedure Act and Rules by the 2nd Respondent is inapplicable and insufficient to help its cause before this Court.

[11] Secondly, Rule 8 remains as the only legal provision under which the application is made. Rule 8 provides for Further pleadings, affidavits etc. It provides:

(1) A party may, with leave of the Court or with the consent of other party, lodge further pleadings or affidavits.

(2) An application for leave under this Rule may be made orally.

(3) Any pleadings, affidavits or other documents filed under this rule shall be served on all parties in accordance with rule 10.

[12] Upon a pragmatic interpretation of this rule, we find that it cannot be a premise for filing of an application like the one before us: seeking leave to file an affidavit to withdraw from proceedings. This rule allows parties to seek leave (orally) to file a further affidavit or further pleading in addition to what a party might have already filed before Court. The rule cannot be invoked where a party seeks to completely withdraw from proceedings. Hence on that basis alone, we find that the application is fatal for being predicated on a wrong statutory provision.

[13] Be that as it may, we are of the considered view that the application before this Court is alien in law and it is not properly before us. A party who seeks to withdraw from proceedings is required to file a substantive application seeking to withdraw from the proceedings. One cannot withdraw from proceedings by way of an affidavit. An affidavit is a document that presents evidence on oath and cannot, on its own, be a tool for withdrawal from proceedings. Hence the proper cause of action is for the 2nd Respondent to file a substantive application seeking leave to withdraw from the proceedings and not an application seeking leave to file an affidavit to withdraw from proceedings. Such a relief is not available for granting by way of an affidavit.

[14] The upshot is that we have no hesitation in striking out the application for being fatally defective. Consequently, the Notice of Motion application dated17th December 2017 is hereby struck out with no orders as to costs.

Orders accordingly.

DATED and DELIVERED at Nairobi this 8th Day of May, 2019

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D. K. MARAGA M. K. IBRAHIM

CHIEF JUSTICE & PRESIDENT JUSTICE OF THE SUPREME COURT

OF THE SUPREME COURT

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S. C. WANJALA NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

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I. LENAOLA

JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A

TRUE COPY OF THE ORIGINAL

REGISTRAR SUPREME COURT OF KENYA